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Editorial: Published: Jan 17, 2007 12:30 AM
Modified: Jan 17, 2007 04:22 AM

To be fair
Justice must not be hurried, but Duke lacrosse defendants now can look to special prosecutors for a timely review of evidence

So now the Duke lacrosse case - three former players face sexual assault and kidnapping charges - will be in the hands of two experienced prosecutors from the state Attorney General's Office. Jim Coman and Mary Winstead will take a fresh look at all evidence, says their boss, Attorney General Roy Cooper, and without the "distractions" that plagued Durham District Attorney Mike Nifong.
Nifong did make a mess of things. He very publicly announced his certainty that a rape had been committed -- a certainty that turned out to have been unwarranted. He disparaged the defendants. He relied on a photo lineup from which the accuser picked out her alleged attackers that consisted entirely of lacrosse players, potential suspects. That method went against the standard policy of Durham police.

In addition, a lab director said last month that he and Nifong decided to hold back DNA evidence that was favorable to the defense. Because of these problems and others, Nifong now faces ethical charges from the N.C. State Bar that could result in the loss of his law license.

Coman and Winstead are in a tough spot, to put it mildly. For one thing, their main witness, the alleged victim, the woman who says she was attacked at a March 13 party hosted by lacrosse players, has changed her story on several occasions. Nifong, for example, dropped rape charges against the three after the woman decided she could not offer with certainty a description of the episode that met the legal definition of rape.

With a hearing scheduled for Feb. 5 to hear defense motions (including one to throw out the police lineup as a legitimate identification of the players), this case was starting to move a bit. Cooper says it's too early to know whether that hearing will proceed. For Coman and Winstead, the first order of business will be to study the files and to interview potential witnesses. And they'll be talking to defense attorneys, which Nifong was reluctant to do. Obviously, these prosecutors can drop the case after those interviews and a review of the evidence. Or they can move ahead with it.

Defense attorneys indicate they don't object to the new prosecutors taking a thorough look at the case, and the players' lawyers indicate they have confidence in Coman and Winstead in terms of their personal integrity. Their reexamination must be careful and impartial. Ideally for all involved, the handoff to the Attorney General's Office -- which came at Nifong's request -- won't push resolution of the case too far into the future.

In the meantime, Nifong won't be enjoying himself as the State Bar examines his conduct. His fellow district attorneys have indicated their concern over his handling of this case, and indeed, it does reflect poorly on North Carolina's system of justice and what is supposed to be a prosecutor's resolve to find the truth and not just choreograph the system to obtain a conviction. Mike Nifong, of course, deserves the same fairness from the State Bar that the system is supposed to deliver for defendants in the courtroom. Certainly he has some explaining to do.

This episode has been painful for the accuser, the defendants and their families, for Duke University, for the community of Durham. These two prosecutors, however, are by experience appropriate people to look at the core of the case without prejudice toward any group or individual.

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Columns Home / Opinion / Columns

Rick Martinez: Published: Jan 17, 2007 12:30 AM
Modified: Jan 17, 2007 04:22 AM

What happens to justice?

Rick Martinez, Correspondent

A knot tightened in my stomach when I saw state Attorney General Roy Cooper stride to the podium Saturday to announce that his office is taking over the Duke lacrosse case from Durham District Attorney Mike Nifong. The AG strikes me as a guy who likes his cases as tidy as his suit. He didn't disappoint me.
"Agreeing to accept the prosecution of these cases doesn't guarantee a trial, nor does it guarantee a dismissal. It simply promises a fresh and thorough review of the facts and a decision on the best way to handle these cases," Cooper said.

While his words elicited cheers from the truth-and-justice crowd, they were a major disappointment for me. I hate this case and want it to go away.

And frankly, it's been crumbling quite nicely under Nifong's leadership. So much so that I predict all charges against Collin Finnerty, Reade Seligmann and David Evans will be dropped at a scheduled Feb. 5 hearing -- if it occurs.

That hearing is when the defense is expected to challenge the photo lineup used to identify the lacrosse players as perps. Nifong told The New York Times that if the accuser can't stand before Judge W. Osmond Smith and positively identify Finnerty, Seligmann and Evans, he doesn't have a case.

My money is on no case.

However, the likelihood of that hearing being held on schedule is fast evaporating. Special prosecutors Jim Coman and Mary Winstead are just now picking up court documents. It's doubtful they'll be good to go in less than 20 days.

So instead of heading toward dismissal, the Duke lacrosse case is likely to be saddled with more delay.

And for this we can thank the N.C. State Bar. It effectively forced Nifong out by filing a complaint against him before the case was resolved.

The way I figure it, the change of prosecutors, however well-intentioned, is yet another disservice to the families of the accused.

But in the case of the Evans family, I seem to be figuring wrong. Rae and David C. Evans told me in a phone conversation from their Maryland home that they welcome Nifong's recusal. They're after vindication, not merely dismissal.

Had Nifong remained in charge, they fear he would have moved for a dismissal of the charges without prejudice. That would give him the right to refile charges once the cameras had gone.

It also wouldn't surprise the Evanses if the district attorney were to imply that the accuser was intimidated into not testifying.

The way they see it, as long as Nifong was involved, the State of North Carolina would never conclude that their son is innocent -- only that authorities couldn't prove his guilt beyond a reasonable doubt.

For Rae and David Evans, that's nowhere near good enough.

So if the case drags on while the state's special prosecutors comb through the evidence (or lack thereof), re-interview witnesses or launch investigations into new areas, so be it. Evans' parents believe the more thorough the investigation, the more inevitable their son's exoneration.

That's nice, but I bet that's also what their son believed when he cooperated like a Boy Scout with the Durham police during the investigation's initial days. Look where that got him.

Despite the passage of time, this case is still a political and racial hot potato. And Cooper is a politician with a history of sensitivity toward the African-American community. When cross burnings hit Durham in the spring of 2005, Cooper was the only statewide elected official to show up at a Sunday unity rally (I know; I was there).

Sensitivity to minorities' concerns is surely a good thing, but there are people in Durham who won't be satisfied until this case goes to trial. That remains a distinct possibility given that Finnerty, Seligmann and Evans still carry felony indictments.

I told Rae and David Evans that they're rolling the dice by applauding Cooper's takeover instead of allowing the case to self-destruct under Nifong.

David Evans, a civil-case attorney, didn't budge. He's confident the AG's investigation will lead to vindication. As he put it, with his voice stiffening, once all the evidence is examined, the special prosecutors will conclude it's impossible to prosecute a crime that never occurred.

Contributing columnist Rick Martinez can be reached at rickjmartinez2@verizon.net